What is the point of the Liberal Democrats if they don't stop secret justice?

The denizens of the British State want to prevent their activities being judged in open court and will undermine a fundamental principle of the rule of law to have their way. If the Liberal Democrat leadership does not stop them there is no point in their party's existence.

In the UK it pays to ask a simple question when confronted with a piece of legislation such as the justice and security bill, which has become so complicated that probably no more than 100 people in the country fully understand it.

Outside
parliament, there is a dim sense that the bill will introduce closed
material procedures – secret courts – into English civil law in cases
where national security is said to be at stake. People are beginning to
appreciate that this means a claimant is banned from knowing anything
about their case and that this in turn will make it easier for ministers
and the intelligence agencies to cover up wrongdoing, such as rendition and torture.

But that is about the limit of public awareness. The rest of the world is quite unaware that a fundamental principle of justice - that the accused has the right to know of what they are being charged by the State and to defend themslves against the accusation - is being set aside in a country that regards itself as exemplary when it comes to the rule of law.

After
a few days of working out where the legislation currently stands, who supported
which obscure amendment and what chance this writhing monstrosity had of
becoming law, I asked the simple question: where did the bill come
from? After all, it wasn't in the Conservative or Liberal Democrat
manifestos. It wasn't part of the coalition agreement and clearly there
is no public demand for it. Indeed, those who do know about the bill
regard it as a shocking offence to open justice – the principle that
cases are heard and decided in public – and natural justice, where a
person can expect to see the evidence presented by the other party and
receive a fair hearing. This is not us, they say. This is Kafka and
Stalinism, not Britain.

So where did it come from? The answer is
simple. The bill is the idea of the very people it will most benefit –
the intelligence services, civil servants and government ministers –
which is why they are lobbying like hell for it.

This fact alone is enough to tell you that there should be no compromise on the traditions of English common law and that the justice and security bill
should be killed off. As secret hearings and their priesthood of
special advocates move from limited-use immigration courts to threaten
our civil law courts, we can be sure that it won't stop there. Secrecy
is habit-forming.

A vote in the Commons is expected in weeks and
it's clear we have reached an important moment in the life of the
coalition, which may be equal in principle to the attempt to introduce 42-day detention without charge, which Gordon Brown was forced to abandon.
So we can expect to see the same plausible briefing of MPs about the
need to preserve the integrity of our allies' intelligence. We will hear
much bellyaching about a situation in which the government, rather than
risking sensitive evidence in open court, is forced to pay out vast
compensation to people who have had the temerity to allege the UK's
compliance in their torture. And you will see much steam emanate from
the former justice secretary Kenneth Clarke,
as he insists – without irony – that his bill is reasonable and
proportionate and that justice is served by secrecy, rather than
diminished by it.

I know you'd like to believe him – I would too –
but don't. Justice is never served by secret courts, neither in
Beijing, nor here.

Let's not forget how we got here in the first place. After a series of explicit denials, most notably from Jack Straw,
the Labour government had to admit the truth that British intelligence
services were complicit in rendition and torture during the war on
terror. That is why the security establishment wants courts where the
assurances of the officials and politicians will be much harder to test
and embarrassing evidence will never see the light of the day.

The
bill drew a great deal of criticism from peers and MPs on a joint human
rights committee. They were worried about the lack of safeguards
against abuse and were not assured that ministers had made a convincing
argument for secrecy. A number of sensible amendments were suggested by
the Lords, which gave judges more power to weigh the interest of justice
against national security and, crucially, allowed the claimant to apply
for a secret hearing to prise information from the intelligence
services. In other words, they went some way to introducing a two-way
street.

But most of these amendments were thrown out or
neutralised with the help of the Democratic Unionist party's Ian Paisley
Junior in a Commons committee two weeks ago, which, incidentally, went
largely unnoticed by the media because of the vote on gay marriage on
the same day. The principle that secret hearings would be the last
resort after every avenue had been exhausted, including the use of
public interest immunity, has been abandoned. And naturally the idea
that a claimant could use closed material procedure to winkle out
information from the intelligence services horrified the spies' lawyers.
That amendment was duly nailed. So the benefits of secrecy are to be
reserved for the state.

As a Centre for Policy Studies book by the influential Conservative MP Andrew Tyrie
and QC Anthony Peto explains, national security can be used to apply
secrecy to cases that have nothing to do with torture and do not, in
reality, jeopardise national security. Closed material procedures could
be ordered to limit legitimate protests, to hamper inquiries by
journalists, to prevent people from recovering property seized under the
Proceeds of Crime Act and to stop wounded servicemen from suing the
Ministry of Defence for faulty equipment. Special advocates would be
used to represent claimants who would never be allowed to know why their
cases failed or succeeded.

The justice and security bill has a
Blair-era hallmark. It is disproportionate and unnecessary, which is
probably why it appeals to Jack Straw, who still faces embarrassing
questions on torture and rendition that took place on his watch.

But
in all this there is mystery. The bill has been devised under a
coalition government that includes Liberal Democrats, whose conference
overwhelmingly voted against the measure. It is difficult to see how Lib
Dem MPs could vote for a bill that restricts rights under the law, at
the same time as increasing state power. The justice and security bill
is self-evidently against everything they stand for, which may explain
recent confusing signals from the party and why a Lib Dem voted against
Tory amendments in committee.

Despite Clarke's spin that the bill
mostly conforms to the Lords amendments, it is plain that it has
reverted to its original objectionable form. As the campaigning Tory
David Davis says, if the Lib Dems can't vote against the justice and
security bill, what on earth is the party for? The vast majority of the
party know, but do their MPs know and does Nick Clegg?

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